Claim That Someone Is "Racist" or "White Supremacist" Is Opinion and Thus Not Libel, Though …

claims that someone has engaged in specific conduct may be factual assertions and therefore potentially libelous.

From Richards v. Union Leader Corp., decided Wednesday by the N.H. Supreme Court, in an opinion by Justice James Bassett, joined by Chief Justice Gordon MacDonald and Justice Patrick Donovan (for more on the general legal principle here, which emerges from mid-1900s concluding similarly as to allegation of Communist sympathies, see this post):

The plaintiff is the father of two children enrolled in the Hanover School District …. In 2021, the district "began sending parents an increasing number of communications about [its] increasing focus on 'equity' and 'anti-racism.'" The communications indicated that the district was planning "significant curricular changes around these issues." The plaintiff was "concerned by materials that he learned were in use in the school district." While he believed the curricular changes were "well-intentioned," the plaintiff believed that the changed curriculum was "deeply divisive and ultimately harmful to the goal of a quality education and a society where everyone is treated equally."

As a result of his concerns about the district's proposed curriculum changes, the plaintiff supported "legislation that prohibits New Hampshire schools from teaching children that they are 'inherently racist, sexist, or oppressive, whether consciously or unconsciously.'" The parties agree that this legislation was House Bill 544 (HB 544). The plaintiff submitted public testimony in favor of the bill.

The Union Leader published an op-ed written by defendant Azzi, titled "White supremacists reveal content of their character," and saying, among other things (I'm excerpting the allegedly defamatory statements here),

Desperate to stay bonded to America's original sins of slavery and genocide of indigenous peoples, Gingrich, Frank Edelblut, Dan Richards, Mike Moffett, Joseph Mendola, and others have disseminated, across multiple media platforms, white supremacist ideology ….

Those who favor whitewashing history—favor suppressing the grievances and rights of Americans unlike themselves—favor suppressing the franchise of citizens who don't look like them—have shown they'll lie … to protect their privilege and power ….

Plaintiff sued for defamation, but the court said that, in context, these statements would be understood by reasonable readers as statement of opinion, not of provable fact:

An important criterion for distinguishing statements of opinion from statements of fact is verifiability—i.e., whether the statement is capable of being proven true or false. "Where an expressive phrase, though pejorative and unflattering, cannot be objectively verified, it belongs squarely in the category of protected opinion." The vaguer a term, or the more meanings it reasonably can convey, the less likely it is to be verifiable and hence actionable.

Although we have not had cause to consider whether characterizations like the terms "racist" or "white supremacist" can be considered actionable under a theory of defamation, numerous other jurisdictions have considered the question. See, e.g., Law Offices of David Freydin, P.C. v. Chamara, 24 F.4th 1122, 1131 (7th Cir. 2022); La Liberte v. Reid, 966 F.3d 79, 93 (2d Cir. 2020); Overhill Farms, Inc. v. Lopez, 190 Cal. App. 4th 1248, 1261-62 (2010); Olthaus v. Niesen, 232 N.E.3d 932, 940 (Ohio Ct. App. 2023). The Ohio Court of Appeals recently concluded that the term "white supremacist" lacks precise meaning, and is an "inherently value-laden" label that conjures "a vast array of highly emotional responses that will vary from reader to reader." The court explained that "because labels like 'white supremacist' lack a plausible method of verification, a reasonable reader will not believe that the statement has specific factual content."

The United States Court of Appeals for the Second Circuit, applying California tort law, has held that "accusations of concrete, wrongful conduct are actionable while general statements charging a person with being racist, unfair, or unjust are not." Likewise, the United States Court of Appeals for the Seventh Circuit, applying Illinois defamation law, has held that the statement "racist" is actionable "when based on identifiable conduct but [is] non-actionable when stated in general terms." So too has the United States Court of Appeals for the Third Circuit held that "derogatory characterizations without more are not defamatory," concluding that "a simple accusation of racism is not enough."

We find the reasoning of these cases persuasive. See, e.g., Stevens v. Tillman, 855 F.2d 394, 402 (7th Cir. 1988) (the derogatory characterization of the plaintiff as a "racist" was non-actionable because it did not "impl[y] the existence of undisclosed, defamatory facts"); Automated Transactions, 172 N.H. at 534 ("an opinion … is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion" (quotation omitted)). Reading the op-ed as a whole, we agree with the trial court that the op-ed merely expressed the author's political opinions and beliefs that he individually held about the plaintiff and others not based on any undisclosed defamatory facts.

The first allegedly defamatory statement identified by the plaintiff (statement 2) cannot be read in isolation, but rather must be read within the context of the paragraph in which it appears. The paragraph reads in its entirety:

Desperate to stay bonded to America's original sins of slavery and genocide of indigenous peoples, Gingrich, Frank Edelblut, Dan Richards, Mike Moffett, Joseph Mendola, and others have disseminated, across multiple media platforms, white supremacist ideology to keep Americans from learning an unexpurgated American history from its 1619 origins alongside the dominant White 1776 narrative.

When read in context, the language used is unquestionably "imaginative expression." As the trial court pointed out, no rational finder of fact could read this paragraph and conclude that the author was claiming that the plaintiff "has engaged in the act of enslaving people" or that the plaintiff was desirous of committing genocide. Rather, as the trial court aptly observed, the author "made an 'imaginative expression,' which, although unflattering, reflects what Azzi believes the plaintiff desires." In addition, it is clear from the context in which it is contained that the phrase "disseminated … white supremacist ideology" falls into the realm of non-actionable derogatory characterization.

Nothing within this paragraph or the greater context of the op-ed states or implies that the plaintiff has engaged in "concrete, wrongful conduct." Rather, the paragraph speaks generally about ideology the author considers to be "white supremacist"—ideology which the author believes the plaintiff supports. As the trial court points out, such a characterization "cannot be objectively verified … because whether a statement espouses white supremacist ideology is a matter of socio-political opinion that differs between individuals." …

Likewise, the other two statements the plaintiff challenges … cannot be read in isolation. The paragraph in which the challenged statements appear states:

Those who favor whitewashing history—favor suppressing the grievances and rights of Americans unlike themselves—favor suppressing the franchise of citizens who don't look like them—have shown they'll lie, go to any lengths, propose any laws, to protect their privilege and power over others. Most repugnant are those who distort, decontextualize, and misrepresent truth-tellers like MLK and Kendi when they talk about race and oppression.

We will assume, as the trial court ruled, that the implication of the challenged statements, which are emphasized above, is directed at the plaintiff as a member of the group identified at the beginning of the op-ed. However, when read as a whole, the general tenor of the rhetoric in the paragraph, and the challenged language especially, is hyperbolic and, therefore, does not create the implication that the author is stating actual facts.

This language does not accuse the plaintiff of actual conduct—for example, as the trial court noted, it does not claim that the plaintiff prevented anyone from voting or personally lied to "protect his supposed privilege and power." Rather, the author merely expresses his opinion of the behavior of all people who hold this purported ideology and projects it onto those who, like the plaintiff, supported HB 544. As the trial court concluded, "the statements are what Azzi claims to be attributes of a group that 'favor[s] whitewashing history.'"

At its core, as the trial court noted, this rhetoric expresses the author's "socio-political opinion and cannot be verified." Accordingly, we conclude that the language falls within the realm of non-actionable opinion and, therefore, the trial court did not err.

The plaintiff next asserts that the trial court erred in concluding that "none of the challenged statements imply undisclosed defamatory facts." Although the plaintiff argues that a statement of "opinion" is actionable if it may reasonably be understood to imply the existence of defamatory facts as the basis for the opinion, as explained above, we agree with the trial court that the challenged rhetorical language does not imply the existence of any non-disclosed defamatory facts. Moreover, the author explains that his opinion derives from the plaintiff's support of HB 544, a fact which the plaintiff does not dispute. Thus, while the op-ed does not imply the existence of undisclosed defamatory facts, it also states the factual basis on which it relies. Therefore, we conclude that the trial court did not err….

[Furthermore,] "Although the appearance of the column on the op-ed page, without more, is not at all dispositive, it is nevertheless some indication that the statements made in the column are opinions." "[R]eaders of the op-ed page no doubt expect to read columnists' views and opinions as opposed to factual news stories." …

Justice Melissa Countway disagreed on this point:

The majority asserts that the phrase "'disseminated … white supremacist ideology' falls into the realm of non-actionable derogatory characterization," and that "nothing within this paragraph or the greater context of the op-ed states or implies that the plaintiff has engaged in 'concrete, wrongful conduct.'" I disagree, because I would distinguish a statement accusing someone of being a white supremacist, see Olthaus v. Niesen, 232 N.E.3d 932, 940 (Ohio 2023) (noting that the plaintiff made no argument "for how someone would plausibly go about proving or disproving one's white supremacist bona fides"), from the statement at issue here. In the present case, it would be possible to examine the information that, according to Azzi, the plaintiff has disseminated over multiple media platforms to determine whether it contains white supremacist ideology.

In concluding that the statement is "rhetorical" and "does not imply the existence of any non-disclosed defamatory facts," the majority states that "the author explains that his opinion derives from the plaintiff's support of HB 544, a fact which the plaintiff does not dispute." The majority evidently concludes that defendant Azzi's statement that the plaintiff disseminated white supremacist ideology was a statement of Azzi's opinion that by supporting HB 544 and opposing the teaching of critical race theory, the plaintiff disseminated white supremacist ideology.

Were it clear on the face of the article that this was the factual basis of defendant Azzi's assertion, I would agree that the statement would not be actionable. In such a case the reader would have had the opportunity to assess the basis on which the statement was founded, allowing the reader to draw his or her own conclusions concerning the opinion's validity.

But the article does not make that clear. While defendant Azzi asserts that the article, in electronic form, links to columns and articles written by others named in the opinion piece, specifically, Gingrich, Edelblut, and Mendoza, the defendants do not contend that the article contains links to the plaintiff's statements, writings or actions. Accordingly, it is not clear what facts defendant Azzi relies upon to support his assertion that the plaintiff disseminated white supremacist ideology.

In light of the foregoing, I would reverse and remand the case for further proceedings, including a determination of whether the plaintiff is a public figure, in which case he would be required to prove, not only that the stated or implied assertions of fact are false, but also that the statement was made with actual malice….

For another illustration of the general pejorative vs. specific allegation line that the court is drawing, see Duc Tan v. Le (Wash. 2013):

While an allegation that someone is a communist may be merely imprecise or loose language [and therefore nonactionable opinion], it is "quite another case" [and one in which a defamation claim can be made out] to accuse someone of being an agent of the Viet Cong communist government.

See also, e.g., Ollman v. Evans (D.C. Cir. 1984) (Kenneth Starr, J.) (concluding that saying someone "is an outspoken proponent of political Marxism" is opinion; Judges Robert Bork and Antonin Scalia, among others, also agreed on this point).

On a separate matter, the Justices unanimously declined to recognize the "false light" tort, which allows liability for false statements about people even when they're not defamatory but are just highly offensive. Most states recognize this tort, but some don't. (All states recognize the defamation tort.)

Kathleen C. Sullivan (Malloy & Sullivan) and Michael S. Lewis (Rath, Young and Pignatelli) (no, not the other Kathleen Sullivan and Michael Lewis) represented defendants.